1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-25-1994

United States of America v. Alcan Alum. Inc., et al.

Precedential or Non-Precedential:

Docket 93-1099

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

___________ 

No. 93-1099 

___________ 

UNITED STATES OF AMERICA 

v. 

ALCAN ALUMINUM, INC.; 

CHAMPION AUTO GENERATOR SERVICE, INC.; 

INTERNATIONAL FLAVORS AND FRAGRANCES, INC.; 

KALAMA CHEMICAL, INC.; SCHULTZ ELECTROPLATING, INC.; 

S&W WASTE, INC.; McADOO ASSOCIATES, INC.; 

PAYSO, INC.; EDWARD L. PAYER; NOREEN PAYER 

v. 

AT&T TECHNOLOGIES, INC.; 

CPS CHEMICALS COMPANY, INC.; 

EAST COAST POLLUTION CONTROL, INC.; 

KNOLL INTERNATIONAL, INC.; 

LEHIGH STRUCTURAL STEEL COMPANY; 

JOHN E. POTOCHNY; BEATRICE/HUNT WESSON, INC.; 

PROCTER & GAMBLE MANUFACTURING COMPANY; 

21 INTERNATIONAL, INC.; SPECIAL METALS CORPORATION; 

ACTIVATED METALS & CHEMICALS, INC.; 

TELEDYNE VASCO, A Division of Teledyne Industries, Inc.; 

TELEDYNE WAH CHANG HUNTSVILLE, 

A Division of Teledyne Industries, Inc.; 

WITCO CORPORATION, on behalf of itself 

and the RICHARDSON COMPANY; 

CBP RESOURCES; FIRST VALLEY BANK 

 The Trustees of the McAdoo Associates 

 Site Trust Fund ("the Trustees"), 

 proposed intervenors, 

 Appellants 

_______________________________________________ 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Civil Action No. 88-04970) 

___________________ 
2 
3 

Argued December 2, 1993 

Before: SCIRICA and ALITO, Circuit Judges

and BASSLER, District Judge* 

(Filed May 25, l994 ) 

ANTOINETTE R. STONE, ESQUIRE (Argued) 

Buchanan Ingersoll 

1200 Two Logan Square 

18th and Arch Streets 

Philadelphia, Pennsylvania 19103 

 Attorney for Appellants 

JOHN T. STAHR, ESQUIRE (Argued) 

United States Department of Justice 

P.O. Box 23985 

L'Enfant Plaza Station 

Washington, D.C. 20026 

EVELYN YING, ESQUIRE 

United States Department of Justice 

P.O. Box 23795 

L'Enfant Plaza Station 

Washington, D.C. 20026 

 Attorneys for Appellee, United States of America 

DOUGLAS F. SCHLEICHER, ESQUIRE (Argued) 

Saul, Ewing, Remick & Saul 

3800 Centre Square West 

Philadelphia, Pennsylvania 19102 

 Attorney for Appellee, 

 International Flavors and Fragrances, Inc. 

ROBERT B. McKINSTRY, JR., ESQUIRE (Argued) 

Ballard, Spahr, Andrews & Ingersoll 

1735 Market Street, 51st Floor 

Philadelphia, Pennsylvania 19103 

 Attorney for Appellee, First Valley Bank 

 
4 

*The Honorable William G. Bassler, United States District Judge 

for the District of New Jersey, sitting by designation. 
5 

JOEL SCHNEIDER, ESQUIRE 

Manta & Welge 

One Commerce Square, 37th Floor 

2005 Market Street 

Philadelphia, Pennsylvania 19103 

 Attorney for Appellee, Kalama Chemical, Inc. 

ALLEN E. ERTEL, ESQUIRE 

Allen E. Ertel & Associates 

30 West 3rd Street, Suite 301 

Williamsport, Pennsylvania 17701 

 Attorney for Appellee, Schultz Electroplating, Inc. 

MARK N. COHEN, ESQUIRE 

Margolis, Edelstein & Scherlis 

The Curtis Center, 4th Floor 

Sixth and Walnut Streets 

Philadelphia, Pennsylvania 19106 

 Attorney for Appellee, S&W Waste, Inc. 

HOWARD M. KLEIN, ESQUIRE 

Conrad, O'Brien, Gellman & Rohn 

1515 Market Street, 16th Floor 

Philadelphia, Pennsylvania 19102 

 Attorney for Appellee, AT&T Technologies, Inc. 

DAVID E. LODER, ESQUIRE 

Duane, Morris & Heckscher 

4200 One Liberty Place 

Philadelphia, Pennsylvania 19103-7396 

 Attorney for Appellee, Lehigh Structural Steel Company 

RODNEY B. GRIFFITH, ESQUIRE 

JANICE V. QUIMBY-FOX, ESQUIRE 

Schnader, Harrison, Segal & Lewis 

1600 Market Street, Suite 3600 

Philadelphia, Pennsylvania 19103 

 Attorneys for Appellee, Beatrice/Hunt Wesson, Inc. 
6 
7 

THEODORE L. GARRETT, ESQUIRE 

Covington & Burling 

1201 Pennsylvania Avenue, N.W. 

P.O. Box 7566 

Washington, D.C. 20044 

FREDERICK W. ROM, ESQUIRE 

Lavin, Coleman, Finarelli & Gray 

10000 Midlantic Drive, Suite 300 West 

Mount Laurel, New Jersey 08054 

 Attorneys for Appellee, Procter & Gamble Manufacturing Company 

RANDALL L. SAROSDY, ESQUIRE 

Akin, Gump, Strauss, Hauer & Feld 

1333 New Hampshire Avenue, N.W. 

Suite 400 

Washington, D.C. 20036 

 Attorney for Appellee, 21 International, Inc. 

__________________ 

OPINION OF THE COURT 

__________________ 

SCIRICA, Circuit Judge. 

 In this appeal we must decide whether a party who has 

entered into a consent decree with the Environmental Protection 

Agency for the cleanup of a superfund site may intervene in 

subsequent litigation over the same site. We believe that, 

provided it can demonstrate it has a protectable interest, an 

early settlor may intervene in the later litigation as of right. 

On these facts, however, the right to intervene hinges on whether 

the applicant had a protectable interest at risk. Because it is 

unclear from the record whether the intervenor's interest was 
8 

affected by the subsequent consent decree, we will vacate the 

district court's orders denying the motion to intervene and 

approving the subsequent consent decree, and remand for a 

determination of whether the second consent decree affected the 

intervenor's rights under the first decree. 

I. 

FACTS & PROCEDURE 

 This appeal arises out of the cleanup of the McAdoo 

site, a parcel of land in Schuylkill County, Pennsylvania. Once 

used for strip mining, the McAdoo site was used for waste 

incineration and recycling from 1975 until it closed in 1979. At 

that time there were approximately 6,800 storage drums and 

several 10,000 and 15,000 gallon storage tanks of hazardous waste 

at the site. 

 The Air Products Litigation

 In 1987 the United States began proceedings over the 

release and threatened release of hazardous material at the 

McAdoo site.0 On June 3, 1988, the government entered into a 

consent decree with 65 Potentially Responsible Parties (PRPs), 

the "Air Products defendants," who agreed to reimburse the 

government for approximately $790,000 of past costs and to 

undertake a remedial program to prevent any future release of 

hazardous substances.0 They also agreed to pay all of the long 

 

0Pennsylvania's Department of Environmental Resources later 

intervened as a plaintiff. 

0The Air Products defendants' consent decree did not address 

surface or ground water contamination at the McAdoo Site. EPA 

has notified the parties that future litigation may be necessary 

to address this problem. 
9 

term operations and maintenance costs. In exchange, the 

government agreed not to seek reimbursement for any of its past 

remedial costs and to allow the Air Products defendants to seek 

reimbursement for as much as 25% of their clean-up costs, 

provided the government could successfully recover those costs 

from other non-settling PRPs.0

 The agreement contained two other notable provisions. 

First, it contained a provision reserving the Air Products 

defendants' right to sue all non-settling parties for 

contribution. Second, it contained a provision stating the 

government's "present intent" not to include in any future 

settlement over the McAdoo site a covenant not to sue that was 

broader than the one contained in the Air Products consent 

decree. 

 The Alcan Litigation

 On June 23, 1988 the government began proceedings 

against another group of PRPs, the "Alcan defendants." In this 

action, the government sought reimbursement for costs it had 

previously incurred and a declaration that the Alcan defendants 

were liable for future response costs. The Alcan defendants and 

the government reached an agreement in January, 1992. The 

resultant consent decree was filed in the district court on 

August 10, 1992, and notice was published in the Federal Register

on August 19, 1992. 57 Fed. Reg. 37,556 (1992). 

 

0The Air Products defendants agreed not to seek reimbursement 

from the government for any part of the costs of operations and 

maintenance. 
10 

 Under the terms of the consent decree the Alcan 

defendants agreed to reimburse approximately $2 million of the 

government's response costs. In exchange, the government agreed 

not to sue the Alcan defendants for: (1) any work covered in the 

Air Products consent decree, (2) any of the government's 

oversight costs, (3) response costs incurred before June, 1990, 

and (4) the government's enforcement costs.0

 As required by CERCLA, the district court reserved 

approval of the consent decree to allow for public comment. 42 

U.S.C. § 9622(d)(2)(1988). On September 16, 1992, the Trustees 

of the McAdoo site, on behalf of the Air Products defendants, 

objected to the consent decree on the grounds that it would 

extinguish their right to sue the Alcan defendants for 

contribution. They also argued the covenant not to sue First 

Valley Bank over surface or ground water contamination violated a 

provision in the Air Products consent decree where the government 

stated its intention not to give any other PRP a covenant not to 

sue broader than the one contained in the Air Products consent 

decree. 

 The Trustees also moved to intervene in the 

government's suit against the Alcan defendants under CERCLA 

§113(i), 42 U.S.C. § 9613(i)(1988), and Federal Rule of Civil 

 

0In addition, the government agreed not to sue First Valley Bank 

in connection with either surface or ground water contamination 

because it believed First Valley's only ownership interest in the 

site was as a secured creditor and secured creditors are exempt 

from liability. See 42 U.S.C. §9607(a)(1)(1988) (imposing 

liability on a facility's owners), and 42 U.S.C. § 

9601(20)(A)(1988) (exempting secured creditors from the 

definition of owner). 
11 

Procedure 24(a).0 On November 24, 1992, the district court 

denied the Trustees' motion, holding that § 113(i) was 

inapplicable, and that the Rule 24 application was untimely and 

did not reflect "a substantial and direct protectable interest in 

the litigation." This timely appeal followed. 

 The district court had jurisdiction under 42 U.S.C. 

§§9607 and 9613(b). We have jurisdiction under 28 U.S.C. § 1291 

(1988) because the denial of a motion to intervene is a final, 

appealable order. See McKay v. Heyison, 614 F.2d 899, 903 (3d 

Cir. 1980); Pennsylvania v. Rizzo, 530 F.2d 501, 504 (3d Cir.), 

cert. denied, sub nom. Fire Officers Union v. Pennsylvania, 426 

U.S. 921 (1976). We review the denial of a motion to intervene 

as of right for abuse of discretion. However, our review "is 

`more stringent' than the abuse of discretion review we apply to 

a denial of a motion for permissive intervention." Brody v. 

Spang, 957 F.2d 1108, 1115 (3d Cir. 1992) (quoting Harris v. 

Pernsley, 820 F.2d 592, 597 (3d Cir.) (internal citation and 

quotation omitted), cert. denied, sub nom. Castille v. Harris, 

484 U.S. 947 (1987)). We will reverse only if we find the 

district court "has applied an improper legal standard or reached 

a decision we are confident is incorrect." Id. (quoting Harris, 

820 F.2d at 597). 

II. 

DISCUSSION

 

0The Trustees also sought permissive intervention under Federal 

Rule of Civil Procedure 24(b). Because we are unable to 

determine whether the Trustees' interest is at stake in the Alcan 

litigation we do not reach this issue. 
12 

 In 1986 Congress passed the Superfund Amendment and 

Reauthorization Act ("SARA"), Pub. L. 99-499; 100 Stat. 1613 

(codified in scattered sections of 42 U.S.C.), which amended 

CERCLA, 42 U.S.C. §§ 6911, 6911a, 9601-75. Congress' intent in 

passing SARA was to ensure rapid and thorough cleanup of toxic 

waste sites. See H.R. Rep. No. 253, 99th Cong., 2d Sess. 55 

reprinted in 1986 U.S.C.C.A.N. 2835, 2837. Because Congress 

believed it could never provide EPA with adequate money or 

manpower, the new law tried to maximize the participation of 

responsible parties in the cleanup. Id. 

 A. Claims under § 113(i).

 Among the sections added to CERCLA in 1986 was §113(i), 

which permits interested parties to intervene as of right in 

actions under CERCLA or the Solid Waste Disposal Act. 42 U.S.C. § 

9613(i).0 The government challenges the Trustees' ability to 

intervene in its suit against the Alcan defendants arguing that, 

under § 113(i), intervention is restricted to persons who wish to 

 

0Section 113(i) provides: 

 In any action commenced under this 

chapter or under the Solid Waste Disposal Act 

in a court of the United States, any person 

may intervene as a matter of right when such 

person claims an interest relating to the 

subject of the action and is so situated that 

the disposition of the action may, as a 

practical matter, impair or impede the 

person's ability to protect that interest, 

unless the President or the State shows that 

the person's interest is adequately 

represented by existing parties. 

42 U.S.C. § 9613(i) (1988). 
13 

raise health or environmental concerns. Agreeing with the 

government, the district court held the Trustees could only 

challenge the consent decree through CERCLA's public comment 

provision, § 122(d)(2). See United States v. Alcan Aluminum, 

Inc., No. 88-4970, at 2 n.1 (E.D. Pa. Dec. 1, 1992) (order 

denying motion to intervene). 

 When interpreting a statute we look first to the 

language itself. See Reves v. Ernst & Young, 113 S.Ct. 1163, 1169 

(1993). Section 113(i) states, without qualification, that "any 

person" who meets § 113(i)(2)'s four requirements can intervene 

as of right in "any action" commenced under CERCLA. We do not 

believe Congress would have used the phrase "any person may 

intervene" or "any action under this chapter" if it had intended 

to restrict intervention to only those persons raising a 

particular, but unidentified, claim. 

 Moreover, § 113's language mirrors the language in 

Federal Rule of Civil Procedure 24(a).0 That language was added 

 

0Federal Rule of Civil Procedure 24(a) provides in part: 

Upon timely application anyone shall be 

permitted to intervene in an action . . . (2) 

when the applicant claims an interest 

relating to the property or transaction which 

is the subject of the action and the 

applicant is so situated that the disposition 

of the action may as a practical matter 

impair or impede the applicant's ability to 

protect that interest, unless the applicant's 

interest is adequately represented by 

existing parties. 

Fed. R. Civ. P. 24(a) (West 1993). 
14 

to the rule in 1966 to relax the interest requirement and "to 

foster more flexible, pragmatic judicial treatment of 

intervention as of right." Carl Tobias, Standing to Intervene, 

1991 Wis. L. Rev. 415, 430 (1991); see James W. Moore, 3B Moore's 

Federal Practice, ¶ 24.09-1[2], at 24-301 ("The liberalization of 

Rule 24(a) was not aimed at revising the nature of the 

applicant's interest, but was focused mainly on relaxing the 

requirement that the applicant would be bound . . . ). Thus, the 

same language the government here claims restricts intervention 

was added to Rule 24 to facilitate intervention. See Fed. R. Civ. 

P. 24, Notes of Advisory Committee on Rules 1966 Amendment at 

100-01 (West 1993); New Orleans Public Serv. Inc. v. United Gas 

Pipe Line Co., 732 F.2d 452, 463 (5th Cir.) (en banc), cert. 

denied, sub nom. Morial v. United Gas Pipe Line Co., 469 U.S. 

1019 (1984). We do not believe Congress would have used the same 

language in § 113(i) as was used in Rule 24(a) if it had intended 

to reach such a different result. 

 Pointing to the legislative history, the government 

asks us to find a more limited meaning behind the statute's broad 

language.0 "But we do not resort to legislative history to cloud 

 

0The House Judiciary Committee report, states: 

Finally, the Committee amendment adds a new 

subsection 113[i] to CERCLA to provide that 

any person may intervene as a matter of right 

when that person claims a direct public 

health or environmental interest in the 

subject of a judicial action allowed under 

this section, and when the disposition of the 

action may impair or impede the person's 

ability to protect that interest. 
15 

a statutory text that is clear." Ratzlaf v. United States, 114 

S.Ct. 655, 662 (1994); see also Negonsott v. Samuels, 113 S.Ct. 

1119, 1122-23 (1993) ("[W]here [Congress's] will has been 

expressed in reasonably plain terms, that language must 

ordinarily be regarded as conclusive.") (quoting Griffin v. 

Oceanic Contractors, Inc., 458 U.S. 564, 570 (1982)). Thus, 

although we recognize a House report suggests a more limited 

construction, we cannot ignore the clarity of § 113's language. 

Consequently, we believe that any interested party can intervene 

under § 113(i). 

 B. Intervention under Rule 24(a) and § 113(i).

 Because of their similarity, courts apply essentially 

the same test when determining whether to grant an application 

for intervention under both Rule 24(a) and § 113(i). See, e.g., 

Utah v. Kennecott Corp., 801 F. Supp. 553, 571-72 (D. Utah 1992); 

Arizona v. Motorola, Inc., 139 F.R.D. 141, 144 (D. Ariz. 1991); 

United States v. Acton Corp., 131 F.R.D. 431, 433 (D.N.J. 1990).0 

As we explained in Brody and Harris, cases under Rule 24(a), an 

applicant can intervene as of right where: 

(1) the application for intervention is 

timely; (2) the applicant has a sufficient 

interest in the litigation; (3) the interest 

may be affected or impaired, as a practical 

matter by the disposition of the action; and 

(4) the interest is not adequately 

represented by an existing party in the 

litigation. 

 

H.R. Rep. No. 253, 99th Cong., 1st Sess., pt. 3, at 24 (1985) 

reprinted in 1986 U.S.C.C.A.N. at 3047. 

0Although inapplicable in this case, there is one difference 

between the two tests. Under Rule 24 the burden of proving all 

four parts of the test falls on the applicant. Under § 113(i) 

the existing parties must show the applicant's interest is being 

adequately represented in order to prevent intervention. United 

States v. Pitney Bowes, Inc., 1994 U.S. App. Lexis 1318, at *9 

(2d Cir. Jan. 26, 1994); Motorola, 139 F.R.D. at 144. 
16 

Brody, 957 F.2d at 1115; Harris, 820 F.2d at 596. 

 The district court denied the Trustees' motion to 

intervene because it found their motion was untimely, and it 

believed the Trustees did not have a protected interest at stake 

in the litigation. The Trustees claim their application was 

timely because it was filed less than two months after they 

learned the consent decree might jeopardize their right to sue 

for contribution, and because the government persuaded them to 

refrain from intervening earlier by giving them false assurances 

that the Alcan consent decree would not compromise their rights. 

They also claim their right to seek contribution is a legally 

protectable interest which the consent decree, if approved, would 

extinguish. 
17 

 1. Timeliness

 The Alcan litigation began on June 23, 1988. The 

consent decree was filed on August 9, 1992 and the Trustees moved 

to intervene on September 22, 1992. Arguing the Trustees waited 

more than four years before moving to intervene, the government 

claimed the Trustees' motion was untimely. The district court 

also believed the Trustees' motion was untimely, stating, "upon 

consideration of the current status of the litigation and the 

knowledge of the Trustees regarding the discussions leading up to 

the current consent decree, the motion is untimely." We 

disagree. 

 The government misconstrues the timeliness requirement. 

As used here, timeliness is not just a function of counting days; 

it is determined by the totality of the circumstances. See NAACP 

v. New York, 413 U.S. 345, 366 (1973). See generally, James W. 

Moore, 3B Moore's Federal Practice § 24.13 (timeliness is not 

merely a function of when the motion was filed relative to the 

filing of the action). Although the point to which the 

litigation has progressed is one factor to consider, it is not 

dispositive. NAACP, 413 U.S. at 366; National Wildlife Fed'n v. 

Burford, 878 F.2d 422, 433 (D.C. Cir. 1989), rev'd. on other

grounds, sub nom. Lujan v. National Wildlife Fed'n, 497 U.S. 871 

(1990). Moreover, the timeliness requirement is "`an elemental 

form of latches or estoppel.'" Stallworth v. Monsanto, 558 F.2d 

257, 266 (5th Cir. 1977) (citation omitted). As such, timeliness 

should not prevent intervention where an existing party induces 

the applicant to refrain from intervening. Cf. id. at 267 ("Since 
18 

the plaintiffs urged the district court to make it more difficult 

for the appellants to acquire information about the suit early 

on, we do not think they should now be heard to complain that the 

appellants should have . . . appreciated its significance 

sooner."). Consequently, where a party takes reasonable steps to 

protect its interest, its application should not fail on 

timeliness grounds. Cf. NAACP, 413 U.S. at 367. 

 This occurred here. The record demonstrates that the 

Trustees were aware of the Alcan litigation, and kept in touch 

with the government's counsel in order to protect their rights. 

On November 18, 1991, the Trustees' counsel wrote a letter to the 

government attorney handling the case, confirming the content of 

their November 1, 1991 telephone conversation. That letter 

indicates that when, during the course of their conversation, the 

Trustees' counsel voiced concerns about the possibility of the 

Alcan consent decree destroying the Trustees' contribution right, 

the government's attorney assured him that the consent decree 

would not compromise the Trustees' claim.0 That letter, which 

 

0The letter states in part: 

In addition, as we have discussed, the 

settlement of the Non-Settlors' Litigation 

which the United State[s] currently 

contemplates will not protect any of the NonSettlors from claims for contribution for 

costs related to the Operation and 

Maintenance ("O&M") of the Site remedy. In 

short, O&M will not be a covered matter in 

any such settlement. . . . If the United 

States should change its position with 

respect to any Non-Settlor and that NonSettlor's liability for O&M, please let me 

know promptly. In the meantime, I look 
19 

the government does not challenge, demonstrates the Trustees' 

intent to contest any consent decree that compromised their right 

to contribution and that the Trustees refrained from taking 

earlier action, in part, because of assurances given by the 

government. 

 Under these circumstances, the Trustees had no reason 

to believe they should try to intervene because the government 

led them to believe their interests were not at stake in the 

litigation.0 Since the government induced the Trustees to 

refrain from intervening earlier, and the Trustees reasonably 

relied on that representation, the government cannot credibly 

complain the motion was untimely. Stallworth, 558 F.2d at 267. 

 We also believe that, to the extent there is a temporal 

component to the timeliness inquiry, it should be measured from 

the point which an applicant knows, or should know, its rights 

are directly affected by the litigation, not, as the government 

contends, from the time the applicant learns of the litigation. 

In so holding, we are breaking no new ground. The Court of 

 

forward to hearing from you once any Consent 

Decree between the Non-Settlors and the 

United States is ready to be executed by the 

parties to it. 

Letter from Robert Frank to Arnold Rosenthal (Nov. 18, 1991). 

0Because the Trustees demonstrated their intent to challenge the 

consent decree if the decree jeopardized their contribution right 

and the government does not dispute that the letter accurately 

reflects the assurances it gave to the Trustees, this case is 

distinguishable from NAACP, 413 U.S. at 367-68, where the Court 

held it was not an abuse of discretion to deny a motion to 

intervene where the applicant had failed to take steps to protect 

its interest after it became aware of the litigation. Id.
20 

Appeals for the District of Columbia Circuit came to the same 

conclusion in National Wildlife Federation v. Burford, 878 F.2d 

422 (D.C. Cir. 1989), rev'd. on other grounds, sub nom. Lujan v. 

National Wildlife Fed'n, 497 U.S. 871 (1990). There, ASARCO, a 

company that had staked mining claims on lands affected by a 

Bureau of Land Management policy sought to intervene in 

litigation challenging the implementation of that policy. 

ASARCO's motion was filed 3 years after the litigation began, 

but, due to a change in the way the agency construed its policy, 

only 73 days after ASARCO learned its interests were directly 

affected. Id. at 433-34. After the district court denied 

ASARCO's motion to intervene on timeliness grounds the District 

of Columbia Circuit reversed stating: 

the salient factor is not when ASARCO's 

motion to intervene was filed with respect to 

the filing of NWF's original suit . . . . 

Rather, the relevant time from which to 

assess ASARCO's right of intervention is when 

ASARCO knew or should have known that any of 

its rights would be directly affected by this 

litigation. 

Id. at 433-34. 

 The Court of Appeals for the Fifth Circuit came to the 

same conclusion in Stallworth v. Monsanto Co., 558 F.2d 257 (5th 

Cir. 1977). There, a group of black employees sued Monsanto over 

civil rights violations resulting from Monsanto's seniority 

system. When the two sides began settlement negotiations 

Monsanto sought court approval to alert its white employees to 

the possible impact the proposed settlement would have on them. 

The plaintiffs opposed Monsanto's motion and the court agreed. 
21 

Id. at 260-61. When a group of white employees eventually sought 

to intervene under Rule 24(a) the plaintiffs opposed arguing the 

motion was untimely. Id. at 262, 267. When the district court 

denied the motion to intervene, the Fifth Circuit reversed. 

Holding that timeliness should be measured from the point an 

applicant knows, or should know, of the risk to its rights, the 

court explained: 

[A] rule making knowledge of the pendency of 

the litigation the critical event would be 

unsound because it would induce both too much 

and too little intervention. It would 

encourage individuals to seek intervention at 

a time when they ordinarily can possess only 

a small amount of information concerning the 

character and potential ramifications of the 

lawsuit, and when the probability that they 

will misjudge the need for intervention is 

correspondingly high. Often the protective 

step of seeking intervention will later prove 

to have been unnecessary, and the result will 

be needless prejudice to the existing parties 

and the would-be intervenor if his motion is 

granted, and purposeless appeals if his 

motion is denied. In either event, scarce 

judicial resources would be squandered, and 

the litigation costs of the parties would be 

increased. 

558 F.2d at 264-65. 

 We agree. To the extent the length of time an 

applicant waits before applying for intervention is a factor in 

determining timeliness, it should be measured from the point at 

which the applicant knew, or should have known, of the risk to 

its rights. The point at which the applicant should have known 

its rights were at risk is usually a factual determination. 

Nonetheless, where a party induces an applicant to refrain from 
22 

intervening and there is reasonable reliance, the applicant's 

motion should not fail on timeliness grounds. 

 Here, the Trustees moved to intervene 43 days after 

notice of the lodging of the consent decree, the point at which 

they became aware of the potential risk to their contribution 

claim. On these facts we believe their application was timely. 

2. Air Products Defendants' Interest in the 

Litigation.

 We next address whether the Air Products' defendants 

had a sufficient interest in the litigation, the second prong of 

the intervention test. The district court held "[the Trustees] 

do not have a substantial and direct protectable interest in this 

litigation since the Trustees' claim to contribution is not 

involved." The Trustees contend they have a statutory right to 

sue for contribution which approval of the consent decree would 

extinguish. The government claims the district court was correct 

because the right to contribution is not a substantive legal 

right, but instead is merely a contingency. 

 a. Sufficient legal interest. 

 Section 113(f)(1) gives early settling parties a right 

to sue other PRPs for contribution.0 The Trustees contend their 

contribution right is sufficient to support a motion to 

 

0 42 U.S.C. § 9613(f)(1) provides in part: 

Any person may seek contribution from any 

other person who is liable or potentially 

liable under section 9607(a) of this title, 

during or following any action under section 

9606 of this title or under section 9607(a) 

of this title. . . . 
23 

intervene. In response, the government points to several cases 

in which courts have found the right to sue for contribution to 

be merely a contingency rather than a substantive legal right. 

See, e.g., Travelers Indem. Co. v. Dingwell, 884 F.2d 629, 638-41 

(1st Cir. 1989); Arizona v. Motorola, Inc., 139 F.R.D. 141; 

United States v. Vasi, 22 Chem. Waste Litig. Rep. 218 (N.D. Ohio 

1991); United States v. Browning-Ferris Industries, 19 Chem. 

Waste Litig. Rep. 436 (M.D. La. 1989); United States v. Wheeling 

Disposal Serv., Inc., No. 92-0132-CV-W-1, slip. op. (W.D. Mo. 

Oct. 1, 1992). But see United States v. Acton Corp., 131 F.R.D. 

431, 433-34 (D.N.J. 1990) ("[T]he . . . defendants are not 

asserting only an economic interest; they seek to protect a 

statutory right that later may be extinguished."). 

 With the exception of United States v. Browning-Ferris 

Industries, 19 Chem. Waste Litig. Rep. 436 (discussed infra at 

note 14), however, none of the cases cited by the government is 

analogous because they involve either non-settling parties 

attempting to intervene in the consent decree of parties who are 

settling, see Acton, 131 F.R.D. at 432-33; Vasi, 22 Chem. Waste 

Litig. Rep. at 219; Wheeling Disposal, No. 92-0132-CV-W-1, Slip 

Op. at 1-3, or non-interested intervenors asserting the rights of 

third parties, see New Orleans Public Service Inc. v. United Gas 

Pipe Line Co.("NOPSI"), 732 F.2d 452, 466 (5th Cir.) (en banc) 

(city asserting the rights of its power supplier), cert. denied, 

sub nom. Morial v. United Gas Pipe Line Co., 469 U.S. 1019 

(1984); Dingwell, 884 F.2d at 638-41 (insurer asserting the 

rights of its insured). Where the proposed intervenor has not 
24 

yet settled with the government, it is unclear what, if any, 

liability it will have. Thus, any contribution right it might 

have depends on the outcome of some future dispute in which the 

applicant may, or may not, be assigned a portion of liability. In 

that situation, courts have properly found the interest of nonsettlor applicants to be merely contingent.0 

 Here, the applicants have already settled with the 

government. When a PRP settles with the government it accepts a 

specific liability. Unlike the interest of an applicant who has 

not yet settled, which is contingent in the sense that it may 

never ripen, the interest of an applicant who has already settled 

is contingent only in the sense that it cannot be valued. 

However, the fact that the interest cannot be valued does not 

mean it does not exist. The act of settling transforms a PRP's 

contribution right from a contingency to a mature, legally 

protectable interest.0

 

0For its part, an applicant who raises the rights of a thirdparty has no interest at all. 

0In United States v. Browning-Ferris Industries, 19 Chem. Waste 

Litig. Rep. 436 (M.D. La. 1989), the only other court to rule on 

a similar set of facts came to a different conclusion. There, as 

here, the applicant had previously signed a consent decree with 

the government and maintained that a subsequent consent decree, 

if approved, would cut off its right to sue non-settling PRPs for 

contribution. Id. at 437. The court held the applicant had no 

interest in the litigation because §113(f)(3)(C) subordinates the 

rights of all others to the rights of the government. Id. at 439. 

 We agree that § 113(f)(3)(C) subordinates a settlor's 

contribution right to the government's right to recover response 

costs, but we disagree with the decision in BFI. Section 

113(f)(3)(C) makes the settlors' claim subject to the 

government's claim, but it does not affect either the creation or 

extinction of the settlors' right to sue for contribution. 

Therefore, § 113(f)(3)(C) is not helpful in determining whether 

an interest exists. 
25 

 Our conclusion is in line with the policies behind the 

SARA amendments. Congress amended CERCLA because it wanted to 

encourage early settlement. See United States v. Cannons 

Engineering Corp., 720 F. Supp. 1027, 1048 (D. Mass. 1989), 

aff'd, 899 F.2d 79 (1st Cir. 1990); Motorola, 139 F.R.D. at 148 

("Congress created CERCLA to encourage settlement, thereby 

reducing `the time and expense of enforcement litigation that 

necessarily diverts time and money from cleanup and 

restoration.'") (citation omitted). SARA, therefore, gives 

preference to early settlors by exposing a non-settling PRP to 

liability for the rest of the cleanup cost even if that exposure 

exceeds the amount the non-settlor's actions added to the overall 

cost of the cleanup. Cannons Engineering, 720 F. Supp. at 1040 

(the statutory scheme is designed to discourage `free riders' by 

imposing a greater share of clean-up costs on those who delay 

agreeing to contribute to remedial action.); see also, Daniel R. 

Avery, Enforcing Environmental Indemnification Against A Settling 

Party Under CERCLA, 23 Seton Hall L. Rev. 872, 886 (1993) ("The 

shifting of responsibility for settlement shortfall to notsettling PRPs therefore provides a real and meaningful incentive 

for PRPs to settle, and creates `a corresponding detriment to 

their more recalcitrant counterparts.'"). 

 Permitting intervention should encourage settlements. A 

PRP, when deciding whether or not to settle, knows the settlement 

will cap its liability. See 42 U.S.C. § 9613(f)(2); Motorola, 

139 F.R.D. at 145. It also knows it may be able to reduce its 

liability by suing a non-settling PRP for contribution. See 42 
26 

U.S.C. § 9613(f)(1). Given Congress' intent in amending CERCLA, 

and the development of the interest requirement under Rule 24(a), 

we believe early settlors have a sufficiently protectable 

interest in the litigation to permit their intervention. 

 The government also contends the Trustees' interest is 

merely economic and is insufficient to support a motion to 

intervene. Some courts have stated a purely economic interest is 

insufficient to support a motion to intervene. See NOPSI, 732 

F.2d at 464 ("It is plain that something more than an economic 

interest is necessary"); Motorola, 139 F.R.D. at 146 (remote 

economic interest is not enough to support intervention). But 

the Air Products defendants have more than just an economic 

interest. 

 For example, in NOPSI the Court of Appeals for the 

Fifth Circuit rejected the City of New Orleans' application to 

intervene in a settlement between its power supplier, NOPSI, and 

one of NOPSI's suppliers, United Gas Pipe Line Co. Id. at 455. 

The Fifth Circuit found the city's interest in the litigation was 

only economic because the City's only concern in the litigation 

was to ensure its power costs would not be increased by an 

adverse decision against NOPSI. Id. at 464-66. By way of 

explanation, the court described the type of interest that would 

support a motion to intervene, stating: 

What is required is that the interest be one 

which the substantive law recognizes as 

belonging to or being owned by the applicant. 

This is reflected by the requirement that the 

claim the applicant seeks intervention in 

order to assert be a claim as to which the 

applicant is the real party in interest. The 
27 

real party in interest requirement . . . 

`applies to intervenors as well as 

plaintiffs' as does also the rule that `a 

party has no standing to assert a right if it 

is not his own.'" 

Id. at 464 (quoting United States v. 936.71 Acres of Land, 418 

F.2d 551, 556 (5th Cir. 1969)). 

 The same is true of Arizona v. Motorola, Inc., 139 

F.R.D. 141. There, the U.S. District Court for the District of 

Arizona denied the application of Motorola, a defendant in a suit 

brought by the State of Arizona and the City of Phoenix, when it 

moved to intervene in a second lawsuit brought by the State of 

Arizona against the City of Phoenix. Citing the Fifth Circuit's 

analysis in NOPSI, the court held Motorola's interest was only 

contingent because Motorola was not the real party in interest. 

Id. at 144-46. 

 The rule that emerges from these cases is that a party 

has more than an economic interest where it is the real party in 

interest and where the applicant would have standing to raise the 

claim. NOPSI, 732 F.2d at 464. This rationale favors 

intervention here because the Trustees are the true party in 

interest with respect to the right to sue non-settlors for 

contribution.0 Because we believe the right to seek contribution 

 

0In order to prove an interest is impeded, the third part of the 

intervention test, the applicant must demonstrate "a tangible 

threat to [its] legal interest." Brody, 957 F.2d at 1123 

(internal quotation marks and citation omitted). We believe that 

if, on remand, the district court determines the operations and 

maintenance which the Air Products defendants agreed to pay is 

addressed in the Alcan consent decree, the Air Products 

defendants will have met this burden because § 113(f)(2) makes a 

party that settles with the government immune from any future 

contribution action "regarding matters addressed in the 
28 

under § 113(f)(3)(B) is a legally cognizable interest we must 

next determine whether that interest is involved in this 

litigation. 

 b. Interest in this litigation.

 Under CERCLA, one of the benefits of settling with the 

government is that a party becomes immune from contribution 

claims "regarding matters addressed in the settlement." 42 U.S.C. 

§ 9613(f)(2)(1988).0 It appears the statute allows the 

government to immunize a late settlor from an early settlor's 

contribution suit by settling with the government. Id.0 It 

 

settlement." 42 U.S.C. § 9613(f)(2)(1988). Since, under those 

circumstances, approval of the consent decree might extinguish 

the Trustees' right to sue for contribution, this constitutes a 

sufficient threat to their interest to permit intervention. 

 Similarly, we believe the Air Products defendants' 

interests are not being adequately represented in this 

litigation, the fourth part of the intervention test. An 

applicant's rights are not adequately represented where: (1) the 

interest of the applicant so diverges from those of the 

representative party that the representative party cannot devote 

proper attention to the applicant's interest; (2) there is 

collusion between the existing parties; or (3) the representative 

party is not diligently prosecuting the suit. Brody, 957 F.2d at 

1123. We believe that where, as here, neither party represents 

the applicant's interests and the existing parties contest 

intervention it cannot be said the applicant's interests are 

being diligently prosecuted. 

042 U.S.C. § 9613(f)(2) provides: 

 A person who has resolved its liability to the 

United States or a State in an administrative or 

judicially approved settlement shall not be liable for 

claims for contribution regarding matters addressed in 

the settlement. Such settlement does not discharge any 

of the other potentially liable persons unless its 

terms so provide, but it reduces the potential 

liability of the others by the amount of the 

settlement. 

0There is some indication in the legislative history that 

Congress intended § 113(f) to protect settlors from contribution 
29 

would appear that if the Alcan consent decree covered the 

operations and maintenance which the Air Products defendants 

agreed to pay, the Air Products defendants could not sue for 

contribution. See supra note 15. Thus, whether the Air Products 

defendants have an interest at stake in this litigation depends 

on whether the Alcan consent decree addresses operations and 

maintenance. 

 The district court did not expressly determine whether 

operations and maintenance was addressed in the Alcan consent 

decree. Instead, it stated, "the Trustees may not intervene as 

 

claims by non-settlors, see H.R. Rep. No. 253, 99th Cong., 1st 

Sess., pt. 3, at 19, reprinted in 1986 U.S.C.C.A.N. at 3042 

(settlement under § 113(f)(2) "gives the settling party 

protection from the contribution claims of other potentially 

liable parties . . . ."), while retaining settlors' right to sue 

for contribution. It is possible that Congress never considered 

the prospect of a late settlor asserting § 113(f)(2)'s protection 

against an earlier settlor, but the parties have not pointed to 

any authority or legislative history on this point. In view of 

the clear and unambiguous language of § 113(f)(2), however, the 

statute's plain language must be considered conclusive. Reves, 

113 S.Ct. at 1169. 

 If early settlors have no real opportunity to protect 

their contribution right, i.e., no opportunity to intervene, we 

expect that PRPs may discount the right to sue for contribution 

under § 113(f)(1). This may have the unfortunate effect of 

removing an incentive to settle early. Although this result may 

prove unsatisfactory, we cannot ignore the clear and unambiguous 

language of § 113(f)(2). Any change in the statutory scheme must 

come from Congress. 

 We do not believe § 122(d) -- CERCLA's public comment 

provision -- adequately protects an early settlor's contribution 

right. The right to intervene gives parties, among other things, 

the right to participate in discovery, see Fed. R. Civ. P. 

26(b)(1), and the right to appeal an adverse judgment, see Bell 

Atlantic Corp. v. Bolger, 2 F.3d 1304, 1307 (3d Cir. 

1993)("Generally, `only parties to a lawsuit, or those that 

properly become parties, may appeal an adverse judgment.'" 

(quoting Marino v. Ortiz, 484 U.S. 301, 304 (1988)(per curiam)), 

neither of which accompanies the ability to comment. 
30 

of right under [Rule] 24(a) since they do not have a substantial 

and direct protectable interest in this litigation since the 

Trustees' claim to contribution is not involved." Order at 2 n.1. 

The district court's statement could be interpreted as an 

implicit declaration that operations and maintenance is not 

covered by the Alcan consent decree, i.e., the Trustees' 

contribution claim is not involved in the Alcan litigation 

because operations and maintenance is not a part of the consent 

decree. 

 We are hesitant to impose this interpretation, however, 

because neither party who negotiated the Alcan consent decree 

supports it. The Alcan defendants vigorously challenge this 

interpretation. They claim operations and maintenance is a 

matter addressed in the consent decree, and approval of the 

decree will immunize them from any future contribution claim 

regarding operations and maintenance. Under their reading of the 

district court's order, the Air Products defendants have an 

interest in the litigation, it is simply not a legally 

protectable interest. The government, both in its brief and at 

oral argument, was unwilling to give an opinion on the issue. 

 On these facts, the right to intervene hinges on 

whether operations and maintenance is addressed in the Alcan 

consent decree. But on the record before us we are unable to 

make this determination. Moreover, we are uncertain whether the 

district court's decision to deny intervention was based on a 

belief that the Trustees' interest was not at stake or that the 

Trustees' interest, while at stake, was not sufficiently 
31 

protectable to warrant intervention. Therefore, we will remand 

the case to the district court for the purpose of determining 

whether operations and maintenance is an issue addressed in the 

Alcan consent decree.0 

 If on remand the district court determines operations 

and maintenance is covered in the Alcan consent decree, we 

believe the Air Products defendants have a sufficient interest in 

the Alcan litigation to warrant intervention.0 On the other 

hand, if the district court finds operations and maintenance is 

not covered in the Alcan consent decree we do not believe the Air 

Products defendants would have the right to intervene since their 

interest would not be at issue in the Alcan litigation. We 

express no opinion on their right to seek contribution in a later 

action. 

 III. 

Conclusion

 For the foregoing reasons, we will vacate the district 

court orders denying intervention and approving the Alcan consent 

decree. We will also remand the case for the district court to 

 

0The Alcan consent decree does not expressly address operations 

and maintenance. Rather, its covenant not to sue makes 

references to section V of the Air Products consent decree, the 

section which requires the Air Products defendants to pay 

operations and maintenance. On remand the district court may 

wish to open the record to new evidence. That decision, however, 

is within the discretion of the district judge, and we express no 

opinion on it. 

0Although we believe the Air Products defendants' interest would 

be protectable for intervention purposes, we do not rule out the 

possibility that § 113(f)(2) could extinguish their contribution 

right if the Alcan consent decree is approved as written. 

 
32 

determine whether operation and maintenance, as covered in the 

Air Products consent decree, is addressed by the Alcan consent 

decree.